Biden administration moves to reissue DACA after court ruling

Mayorkas: The proposal would 'protect Dreamers and recognize their contributions to this country'

Dreamers and DACA supporters rally outside of the Supreme Court in June 2020.  (Bill Clark/CQ Roll Call file photo)
Dreamers and DACA supporters rally outside of the Supreme Court in June 2020. (Bill Clark/CQ Roll Call file photo)
Posted September 27, 2021 at 11:30am

The Biden administration released a proposed rule Monday to “preserve and fortify” protections for certain undocumented immigrants brought to the U.S. as children, after a Texas federal judge struck down an Obama-era version of the program.

The Department of Homeland Security’s proposal would maintain the same eligibility criteria as the 2012 program, known as Deferred Action for Childhood Arrivals, or DACA, which provides work permits and deportation protections to people without legal status who entered the U.S. prior to June 15, 2012, and who were born after June 16, 1981.

Applicants must also be at least 15 years old to apply, have no criminal record, and either be enrolled in or have graduated from school.

“The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country,” Homeland Security Secretary Alejandro Mayorkas said in a statement Monday, using the popular term for DACA recipients. “This notice of proposed rulemaking is an important step to achieve that goal.”

In its 205-page proposal, the department emphasized the contributions that “Dreamers” have made to their communities since the Obama administration rolled out DACA nearly a decade ago.

Studies show DACA recipients and their households pay $5.6 billion in federal taxes and about $3.1 billion in state and local taxes annually, according to DHS. They also include 30,000 health care workers and professionals in a wide array of occupations, the rule says.

“Over the 9 years in which the DACA policy has been in effect, the good faith investments recipients have made in both themselves and their communities, and the investments that their communities have made in them, have been, in the Department’s judgment, substantial,” the proposal says.

The proposed rule will be published Tuesday in the Federal Register and remain open for public feedback for 60 days. It represents the Biden administration’s response to the July ruling by U.S. District Judge Andrew Hanen, who found that the DACA program was created illegally.

Hanen, of the Southern District of Texas, concluded that the Obama administration skirted procedural requirements when initially implementing the DACA program via agency memo, rather than soliciting public feedback through the formal regulatory process.

More substantively, Hanen also questioned DHS’s authority to implement such a program at all, finding that Congress had already outlined certain categories of immigrants eligible for work authorization, and DACA recipients were not among them.

In an effort to respond to those concerns in its proposal, DHS suggested making work authorization a separate and optional benefit for DACA recipients and allowing applicants to request only deportation protections under the program for a lower fee.

However, the department also stressed the proposed rule “should not be interpreted as suggesting that DHS itself doubts the legality of the 2012 DACA policy or any other past, present, or future deferred action policy.”

The Biden administration has appealed Hanen’s ruling to the 5th U.S. Circuit Court of Appeals.

The proposal comes as Congress considers passing legislation that would create a path to a green card for millions of undocumented immigrants, including Dreamers, through the budget reconciliation process, under which measures can pass the Senate with a filibuster-proof majority.

The House Judiciary Committee’s portion of the measure would put Dreamers, as well as other categories of immigrants, on a path to citizenship. However, the Senate parliamentarian ruled earlier this month that such provisions did not comply with reconciliation rules, sending Democratic leaders back to the drawing board and casting doubt on the future of those efforts.

[Democrats prep Plan B after immigration bid rejected]

In his Monday statement, Mayorkas called on Congress to step in and pass permanent protections for DACA recipients.

“I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve,” he said.